Surviving the Survival Statute

Survival actions allow a decedent’s personal representative or successor in interest to effectively step into the shoes of the decedent to pursue a claim. In California, plaintiffs in a survival action filed before January 1, 2022 are precluded from seeking damages for pain, suffering or disfigurement. However, plaintiffs in a survival action filed on or after January 1, 2022, and before January 1, 2026 are entitled to seek damages for pain, suffering or disfigurement.

Code of Civil Procedure section 377.34, which became effective January 1, 2022, specifically provides: “in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding … was filed on or after January 1, 2022, and before January 1, 2026.”

Although a plain reading of the statute establishes that pain and suffering damages are recoverable if an action is filed on or after January 1, 2022, a recent petition for review submitted to the California Supreme Court demonstrates that the plaintiffs bar is actively trying to enlarge the statute to apply to amended complaints as well.

In Ana Gonzalez v. Los Angeles County Superior Court, both the trial court and appellate court disagreed that an amended complaint constituted a new action as contemplated by the statute. Gonzalez involved the personal injury claims by decedent, Victor Gonzalez, that he sustained silicosis as a result of occupational exposures to various natural and synthetic stone products. On February 19, 2021, Mr. Gonzalez filed a personal injury action against the manufacturers and suppliers of the products. On September 13, 2021, Mr. Gonzalez passed away. On November 22, 2021, the wife of Mr. Gonzalez, Ana Gonzalez, was appointed successor-in-interest and granted permission to continue Mr. Gonzalez’s action in his place. On March 22, 2022, Mrs. Gonzalez filed a First Amended Complaint for survival and wrongful death, which included a claim for Mr. Gonzalez’s pain, suffering and disfigurement pursuant to Code of Civil Procedure section 377.34. Certain defendants filed motions to strike the pain and suffering claim on the ground that Mrs. Gonzalez’s action was not filed after January 1, 2022.

The trial court granted the motions to strike, finding that the First Amended Complaint was a continuation of the action initiated by Mr. Gonzalez.

The petition to the Supreme Court argues that based on the definition of “action” in Code of Civil Procedure section 22, Mrs. Gonzalez’s survival cause of action fits within the meaning of survival statute. Code of Civil Procedure section 22 defines action as: “an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Therefore, Mrs. Gonzalez argues that the survival statute does not require the action to be a “new case.”

A reversal by the state’s highest court could lead to other plaintiffs in survival actions to seek leave to file amended complaints to assert pain and suffering damages on behalf of their decedents. This will likely further impact California’s already heavy civil docket. Although California was the 46th state to allow for the recovery of pain and suffering damages on behalf of a decedent, this is temporary as evidenced by the inclusion of a January 1, 2026 sunset provision.